P L D 1952 Lahore 209 (PLP)

S. A. RAHMAN, J.‑The facts giving rise to this second appeal are as follows. The appellant Ghulam Hussain applied for sanction to the Sialkot Municipal Committee for building a house on a plot of land situate in Mohalla Nekapura in Sialkot City. Sanction was accorded by a resolution of the Committee dated the 22nd of July, 1947, but it was allowed to lapse without construction having started. He again applied for sanction to build on this very plot and the application was granted on the 11th of February, 1949. On the 30th of May 1949, the Committee cancelled the sanction thus accorded and informed the appellant accordingly before he had started build ing operations. He however, paid no heed to the revocation of the sanction and subsequently commenced construction on this plot. A notice was then served upon him on the 15th of December 1949 under section 195 of the. Punjab Municipal Act, 1911 (hereinafter referred to as the Act), calling upon him to demolish the structure built by him after the 30th of May 1949. On the 20th of December 1949, the appellant brought the suit out of which the present appeal has arisen for a permanent injunction restraining .the defendant Committee from standing in the way of the plaintiff's completing his building in accordance with the sanctioned plan. The suit was resisted on various grounds. It was denied that the plaintiff was the owner of the plot in dispute which was claimed to be a public street. It was further pleaded that sanction to build was accorded in disregarded for the real facts and that revocation was perfectly legal. The trial Court framed the following issues :‑ 1. Whether the site in dispute shown in the plan by the letters A. B. C‑ D. E. F. G. belongs to the plaintiff? 2. Whether the site in dispute was a street? 3. Whether the sanctions for building over the site in dispute, which were given on the 22nd of July 1947 and 11th of February 1949, were given with disregard to the real facts and, if so, what is its effect? 4. Whether the resolution of the defendant Committee, dated the 30th May 1949 with regard to the cancellation of the sanction to build over‑ the property in dispute was illegal and void? 5. Whether the notice, dated the 15th of February 1949, under section 195 of the Municipal Act was illegal and void? 6. Relief. The learned Sub‑Judge found that the plaintiff was the owner of the land in dispute, that the site was not part of a street, that the sanction previously given did not operate as estoppel against the defendant Committee, that the defendant was not competent, however, to pass the resolution revoking the sanction and that the notice issued in pursuance of that resolution under section 195 of the Municipal Act was illegal. The plaintiff's suit was, therefore, decreed with costs. On appeal by the Municipal Committee, the learned Senior Sub- Judge, Sialkot, reversed the decision on all the material issues and set aside the decree passed by the trial Court with costs throughout. The plaintiff has come up in second appeal to this Court. The first contention raised on behalf of the appellant is that the appeal filed in the Court of the learned Senior Sub -Judge was not competent. It appears that by Resolution No. 406, dated the 15th of December 1950, the Committee decided to file an appeal from the order passed by the trial Sub‑Judge. Another resolution was passed by the Committee on the 29th of December 1950 at No. 449, by which the previous decision to file an appeal was reversed. The Deputy Commissioner, Sialkot, by his order dated the 2nd of January, 1951, suspended the execution of this second resolution by virtue of his powers under section 232 of the Act and directed that an appeal should be lodged. This order of the Deputy Commissioner was confirmed by the Commissioner under section 235 of the Act on the 19th February 1951. Mr. Bashir Ahmad on behalf of the appellant tried to maintain that section 232 of the Act gave power to the Commissioner or Deputy Commissioner by order in writing to suspend the execution of a resolution or order of a committee or prohibit the doing of an act which was about to be done under cover of the Act or in pursuance of any sanction or permission granted by the Committee in the exercise of its powers under the Act, if the resolution, order or act was in excess of the powers conferred by law or con trary to the interest of the public or likely to cause waste or damage of municipal funds, property, etc., but that there was no power to annul a resolution. In support of this proposition the learned counsel was unable to cite any authority directly in point. The argument to my mind does not advance the case for the appellant to any material extent. It is conceded that the power to suspend the resolution was there. The second resolution having thus been validly suspended the inference is clear that the force of the first resolution would compel the Committee to file an appeal. The appeal was, therefore, presented with proper legal sanction and I cannot see that it was vitiated by any defect in its presentment. It was next argued that under section 193 of the Act,' as amended by the Punjab Municipal (Executive Officer) Act, 1931, the power to grant sanction was vested in the Executive Officer who accorded sanction to the' building application in this case and, therefore, that officer alone could have, if at all, revoked the sanction and not the Municipal Committee. This ‑is, however, a new point being raised for the first time ink second appeal. It involves a question of fact as to whether the sanction was given by the Executive Officer and revoked by the Committee alone or by the Executive Officer also in addition. AA such it cannot be permitted to be raised at this late stage. The learned Senior Sub‑Judge held in appeal that the title of the plaintiff appellant to the site in dispute was not established and that in any case, the site in question was part of a public street. He has not used the word 'public' but the language of the decision clearly implies that finding. Learned counsel for the appellant has challenged the correctness of both these findings. He contends that this site was part of the shamilat of the revenue estate Pura Neka, in which Ghulam Hussain appellant was a co‑sharer. He further contends that although the Committee claimed to have done some earth‑filling work at the site once and an old disused municipal drain had also been unearthed at the spot. these factors were nor conclusive to establish the status of the site as part of a street, much less a public street. The evidence on the record is not of such an unequivocal kind as may lead to the inference that the site in dispute was part of Khasra Nos. 118, 119 and 120 of the Settlement of 1865 which were then described as shamilat numbers and which were claimed to be in the possession of appellant's ancestors. Reli ance in this connection was placed on the report of a local Commissioner appointed by the trial Court. The learned Senior Sub‑Judge has criticised the conclusions reached by the local Commissioner who based his report principally on a comparison of the shajra kishtwar of 1865 with the site at the spot. I am not satisfied that this document alone was sufficient for identi fication of the site in question as a part of these khasra numbers. There is, however, reason to think that the appellant was one of the owners of the shamilat in the estate of Pura Neka. Exhibit P. 8 is an entry from the damahandi of 1946‑47 showing Fazal Karim, father of Ghulam Hussain appellant, to be one of the owners of the shamilat in this estate. Ghulam Hussain replaced his father after his death. This evidence appears to me to be inconclusive however for proving the title of the appellant to the site in dispute. The person who was recorded as in possession of Khasra Nos. 118, 119 and 120 in 1865 was not proved to be identical with an ancestor of the appellant. But I need not give a considered opinion on this point as I think that the appeal can be disposed of on another ground which I proceed to examine. The main complaint in the plaintiff's case was that the defendant Committee could not revoke the sanction to build, once accorded under the provisions of the Act. It was forcibly argued by Mr. Bashir Ahmad on behalf of the appellant that there was no provision in the Act, which gave power to the Committee to revoke any such-sanction, whereas section 193(A) of the Act, which was inserted by the Punjab Municipal (Amendment) Act, 1933, gives only a power to order certain modifications in a sanctioned plan whenever that course is considered to be necessary. This right is also made subject to payment of compensation for any loss to which the owner may be put in consequence of the modification. He further pointed out that in subsection (4) of section 193, if the Com mittee neglects or omits, within sixty days of the receipt from any person, of a valid notice to erect or re‑erect a building, to pass orders sanctioning or refusing to. sanction such erection or re‑erection, then unless the land, on which it is proposed to erect or re‑erect such buildings, belongs to or vests in the Committee, the sanction must be deemed to have been accorded, except in so far as it may contravene any bye‑law, or any building or town planning scheme sanctioned under section 192. This provision was referred to as indirectly supporting the argument that no power rested with the Committee to revoke the sanction once given. Even under this deeming provision, it is only where the land in question belongs or vests in the Committee, that the statutory sanction would not' come into play. In the case of a petition which has been investigated by the Committee and on which sanction to build had been accorded after an enquiry, it is contended that the Legislature had wisely not given any power to the Committee to undo the sanction even if it later discovers that the site belongs to or vests in the Committee. In support of this position the following authorities have been cited: Kirpa Ram v. Notified Area Committee, Pindi Bhattian (A I R 1927 Lah. 891), Ibrahirn v. Municipal Committee of Lahore (52 P R 1900), Vithal Dhondder v. Alibag Municipality [(1918) I L R 42 Bom. 629], Tulla Ram v. Corporation of Calcutta (1903 I L R 30 Cal. 317), Municipality of Sholapur v. Abdul Wahab (I L R 45 Bom. 797), Kareem Ranjan Khoji v. Emperor (39 I C 298) and Matsadi Mal v. Municipal Committee, Bhiwani (6 P R 1891 Cal.). The point was not directly discussed in the last mentioned case and it would be difficult to say whether the Bombay or Calcutta rulings which have been relied upon, can be referred to with advantage as I have not been shown that the law in those provinces is identical with that prevailing here. The other authorities, however, do lend support to the contention raised on behalf of the appellant. The ratio decidendi in 52 P R 1900 was that there was no provision in the Act for cancellation of sanction once given. It was observed by Clark, C. J., in that case that this no doubt was intentional as it would be a hardship to recall a sanction after a building had been erected or all preparations for its erection had been made. The learned judge further added that if after sanction had been given, the Committee thinks it has made a mistake, and that the site is public property, it cannot then proceed under the Act, but can resort to the Civil Courts to maintain its right. This decision was followed in A I R 1927 Lah. 891 by Dalip Singh, J., without much discussion. The learned judge also referred to the decision of the Bombay High Court in (1918) I L R 42 Bom. 629. That decision was grounded on the absence of any power to cancel the permission once granted under subsection (2) of section 96 of the District Municipalities Act (Bombay Act III of 1901). In reply, Mr. Yaqub Ali Khan on behalf of the respondent Committee, takes his stand on section 19 of the Punjab General Clauses Act, 1898, as amended by the West Punjab Act XXI of 1949. This provision of law reads as follows: Where, by any Punjab Act, a power to issue notifica tions, orders, rules or bye‑laws is conferred, then that power includes a power exerciseable in the like manner and subject to the like sanction and conditions (if any), to add to, amend, vary or rescind any orders, rules or bye‑laws so issued." He has pointed out that this enactment expressly gives the Municipal Committee power to cancel or recall a sanction once given under the provisions of the Act which is a provincial Act. There are no words of limitation in this enactment such as were inferred by the learned Judges in the authorities cited on behalf of the appellant from the mere fact that no express power to cancel a sanction once given was conferred on the Committee by any provision of the Act. In, my opinion, the language of section 19 is not confined merely to orders of a legislative kind. It appears to cover all kinds of orders. That a sanction to build is an " order ", is clear on a reference to section 193 of the Act itself. In subsection (4) of that section it is mentioned that the Committee may "pass orders sanctioning or refusing to sanction such erection or re‑erection." The introduction of section 193 (A) conferring a power to modify a sanctioned plan by an amending Act, on this view, must be regarded as merely a provision ex abundanti cautela. The Committee, in my opinion, had power, owing to this general provision, to recall the previous sanction. The effect of this provision was not considered in any of the authorities cited on behalf of the appellant. This is sufficient to conclude the appeal as no contention was raised in the trial Court in the present case that the action of the Committee in revoking the sanction, was arbitrary, oppressive or mala fide. The only plea taken was that the revo cation was not legally valid. I, therefore, hold that the appeal fails. It is hereby dismissed. In view, however, of the circum stances of the case I make no order as to costs in this Court. K. M. A. Appeal dismissed.